Appeal from Circuit Court of Adams County No. 98CF391 Honorable Dennis K. Cashman, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Cook
Defendant, Dyrece Knaff (Knaff), appeals after he was found guilty on two counts of unlawful delivery of a controlled substance and sentenced to concurrent terms of five years' imprisonment. Knaff asserts that his conviction must be reversed because it violates the double jeopardy clauses in the United States and Illinois Constitutions (U.S. Const., amend. V; Ill. Const. 1970, art. I, §10). We affirm.
Knaff was indicted on two counts of unlawful delivery of a controlled substance "on any public way within 1,000 feet of the real property *** owned, operated[,] and managed by a public housing agency" and two counts of the lesser included offense, unlawful delivery of a controlled substance (720 ILCS 570/407(b)(2) (West 1998); 720 ILCS 570/401(d) (West Supp. 1997)). Unlawful delivery on a public way within 1,000 feet of public housing is a Class 1 felony (720 ILCS 570/407(b)(2) (West 1998)), while the lesser included offense (excluding the public-way and 1,000-feet requirements) is a Class 2 felony (720 ILCS 570/401(d) (West Supp. 1997)).
Prior to jury selection, the State moved to dismiss the Class 2 felony counts, claiming that the evidence would show that the offenses occurred "on the public way within 1,000 feet of property owned by the Quincy Housing Authority." However, the prosecutor did state that she would request instructions on the lesser included offenses of unlawful delivery in the event that the evidence did not establish that the offenses occurred on a public way within 1,000 feet of the housing agency. The circuit court dismissed the Class 2 unlawful delivery counts based on the State's request.
Before calling eyewitness Sharon Fields to testify, the State moved to amend count I of the indictment to a Class 2 felony by deleting the phrase "while on a public way within 1,000 feet of property owned, operated[,] and managed by the Quincy Housing Authority." Fields had just revealed that the first sale of cocaine, addressed in count I, took place inside a bar and not on a public sidewalk, as the prosecutor was previously led to believe. Knaff objected to the State's motion on the ground that the jury had already heard evidence on the Class 1 felonies and that reducing count I to a Class 2 felony "could be addressed after the evidence [was] presented." The circuit court denied the State's motion to amend the indictment but stated that it would subsequently decide whether the jury would be instructed on the lesser included offense.
The State proceeded with its case. After the State rested, Knaff moved for a directed verdict on both counts. He argued that there was insufficient evidence to establish that he sold a controlled substance within 1,000 feet of the Quincy Housing Authority property.
The circuit court questioned whether the testimony established that the delivery took place within 1,000 feet of a public housing facility. There was general testimony that the delivery was within a block of public housing property and that an "average" block is approximately 850 feet long. However, no specific testimony established that the delivery occurred within 1,000 feet of public housing property.
The court took the motion for directed verdict under advisement during a recess to allow the parties to research what evidence was required to establish the 1,000-foot distance. Following the recess, the court heard argument and refused to let the Class 1 offenses go to the jury because the State failed to properly establish that the offenses occurred within 1,000 feet of public housing. The State again sought leave to amend the indictment by deleting the language enhancing the offenses to Class 1 felonies from both counts. Defense counsel objected on the ground that the prosecutor had elected to proceed to trial solely on the Class 1 enhanced offenses.
The circuit court ruled that while the evidence was insufficient to prove that the offenses occurred within 1,000 feet of public housing, the State had made its prima facie case for the Class 2 offenses. The court, however, questioned whether it could permit the State to amend the indictment or allow the case to "go forward on the lesser included offense." Knaff argued that the State was bound by its election to proceed solely on the Class 1 enhanced offenses. The State argued that the court had the authority to submit the case to the jury on the lesser included Class 2 offenses. Ultimately, the court allowed the State to amend the indictment, deleting the language enhancing the offense to a Class 1 felony.
The defense presented no evidence. The circuit court advised the jury of its determination that the evidence was insufficient to establish the distance of 1,000 feet and that the case was "going forward on two charges of delivery." The jury returned verdicts of guilty on both counts of unlawful delivery of a controlled substance, the Class 2 offenses.
On appeal, Knaff claims that the circuit court's ruling that found insufficient evidence relating to the Class 1 felonies amounted to a directed verdict, acquitting him of these offenses. Further, since the Class 1 offenses were the only charges remaining against him, he maintains that the State was precluded from amending the indictment to seek convictions on the lesser included Class 2 offenses. Knaff argues that the State made a strategic decision to dismiss the unlawful delivery charges before trial and allowing it to amend the indictment amounted to a violation of the double jeopardy clause. We disagree.
The fifth amendment guarantee against double jeopardy affords individuals three types of protection: (1) protection against a second prosecution for the same offense after acquittal, (2) protection against a second prosecution for the same offense after conviction, and (3) protection against multiple punishments for the same offense. See People v. Stefan, 146 Ill. 2d 324, 333, 586 N.E.2d 1239, 1244 (1992), citing Illinois v. Vitale, 447 U.S. 410, 415, 65 L. Ed. 2d 228, 235, 100 S. Ct. 2260, 2264 (1980). The Illinois Constitution provides: "[n]o person shall be compelled in a criminal case to *** be twice put in jeopardy for the same offense." Ill. Const. 1970, art. I, §10. Knaff claims that his convictions for the Class 2 offenses amounted to "second prosecutions" for the same offense.
Here, we must determine whether the circuit court's ruling on the Class 1 felonies triggered the double jeopardy clause as to the lesser included Class 2 felonies. We conclude that it did not. A defendant may be convicted of an offense not expressly included in the charging instrument if that offense is a lesser included offense of the crime charged. People v. Novak, 163 Ill. 2d 93, 105, 643 N.E.2d 762, 769 (1994). A lesser included offense is "established by proof of the same or less than all of the facts or a less culpable mental state (or both) than that which is required to establish the commission of the offense charged." 720 ILCS 5/2-9(a) (West 1998).
The offense of unlawful delivery in section 401(d) of the Illinois Controlled Substances Act is a lesser included offense of unlawful delivery on a public way within 1,000 feet of public housing as referenced in section 407(b)(2). 720 ILCS 570/401(d) (West Supp. 1997); 570/407(b)(2) (West 1998). The fact that the delivery took place on a public way within ...